TOBACCO CONTROL LAWS

Taylor v. Manager of Auckland Prison

In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds.  A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion.  The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).

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Taylor v Manager of Auckland Prison [2012] NZHC 3591 (20 December 2012)

  • New Zealand
  • Dec 20, 2012
  • High Court of New Zealand, Auckland Registry

Parties

Plaintiff Arthur William Taylor

Defendant Manager of Auckland Prison

Legislation Cited

Smokefree Environments and Regulated Products Act 1990 (Public Act 1990 No. 108) (as amended)

Section 33 of Corrections Act 2004

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)
Cessation
Measures to promote cessation of tobacco use and adequate treatment for tobacco dependence. (See FCTC Art. 14)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

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